Legal Update Corporate & Securities International Trade Asia 6 November 2014 Shanghai Free Trade Zone Further Relaxes Foreign Investment Restrictions on First Anniversary Shanghai FTZ Celebrates First According to the Decision, restrictions on foreign Anniversary investment in certain sectors are further relaxed in Shanghai FTZ, in terms of foreign equity ratio, Since its official launch in 2013, the China (Shanghai) qualification requirements and limitations on Pilot Free Trade Zone (“Shanghai FTZ”) has recently business scope. We set out below some highlights. celebrated its first anniversary. Over the past year, Please refer to the end of this article for a full list of various policies relating to foreign investment have the restrictions removed under the 27 sectors. been promulgated in the 29 square kilometre Shanghai Free Trade Zone in the outskirts of MANUFACTURING SECTOR Shanghai, which has generally been viewed as an important testing ground for the country’s The Decision allows 100% foreign ownership in the policymakers. These policies include a “negative list” manufacture of certain types of equipment and approach on company establishment, the reform on machinery (which is only permitted for joint ventures RMB liberalisation and the opening up of several outside the zone), for example: industrial sectors to foreign investment (such as • R&D, design and manufacture of passenger finance, telecommunication and shipping, etc). service facilities, track and bridge equipment for Notwithstanding the above, the implementation of high-speed rail, passenger rail lines and intercity most of the reforms in the zone is slower than what railway; equipment manufacturing for electric has been expected. While setting up a presence in railway and railway passenger sewage facilities. Shanghai FTZ is a lot easier for sectors falling outside Key electrical equipment used on the high-speed the “negative list”, 139 industries remain on the list trains in China has always been largely relying on even after a revision of the list in July 2014 – these importation from abroad. However, foreign sectors are either prohibited to foreign investors or investment in the high-speed railway industry is subject to stringent government approval. Steps highly restricted. Some major international taken on financial liberalisation have also fallen short players have entered the market in the form of of the promised freeing of RMB and of interest rates. joint ventures with local Chinese companies. While the reform on capital account settlement for Since sole foreign ownership in this industry is foreign-invested enterprises (“FIEs”) is a welcome now allowed in the Shanghai FTZ, foreign move to foreign investors, practical hurdles still exist investors are able to have full control over the which hinder the FIEs to fully benefit from the new business operation and the sector is expected to policy. attract more foreign investment. • R&D and manufacture of automobile electronic Latest Development network technologies and electronic controllers During his visit to the Shanghai FTZ in September for electric power steering system. 2014, Premier Li Keqiang addressed the above • Manufacture of motorcycles with low emission implementation issues and echoed complaints that capacity (≤250ml) and motorcycles with the “negative list” was much too long. Shortly after electronically-controlled fuel injection technology 1 his visit, the State Council issued a Decision to with high emission capacity (>250ml). further open up 27 sectors to foreign investors in Shanghai FTZ. 1. Decision of the State Council on Temporarily Adjusting the Special Access Administrative Measures Prescribed by Certain Administrative Regulations and Ministerial Rules approved by the State Council in the China (Shanghai) Pilot Free Trade Zone / 國務院關於在中國（上海）自由貿易試驗區內暫時調 整實施有關行政法規和經國務院批准的部門規章規定的准入特別管理措施的決定 ENERGY SECTOR BEVERAGE SECTOR According to the Decision, foreign investors are Processing of green tea is classified by the Foreign permitted to hold 100% ownership in a Shanghai Investment Industrial Guidance Catalogue as FTZ entity to provide service in developing new “prohibited” for foreign investment. The Decision technologies in oil extraction, as well as developing allows foreign investors to set up an equity joint and applying new technologies related to oil venture or a cooperative joint venture in Shanghai exploration, drilling, well logging, mud logging and FTZ with Chinese partners (with the Chinese party down-hole operation. being the controlling shareholder) to engage in the processing of green tea by using Chinese traditional MARITIME TRANSPORTATION techniques. Multinational beverage companies can Under the current regulatory regime, foreign now leverage the Shanghai FTZ to enter into the investors have to set up a joint venture with a Chinese green tea market that has been closed to foreign party in order to provide international maritime investors for a long time. cargo loading and unloading service, container yard service or any operate of international maritime Comments container freight station. The Decision cancels such Over the past year, the Chinese government has restrictions in the Shanghai FTZ and allows 100% released a number of policies in Shanghai FTZ foreign ownership in these sectors. aiming to relax restrictions on foreign investment and provide more leeway to foreign investors. The Decision further relaxes restrictions in public However, there has been perception among foreign international shipping agency service by extending investors that number of sectors being opened and the cap on foreign equity from 49% to 51%. the relaxation measures themselves are not as substantial as previously expected. While the Chinese WHOLESALE AND RETAIL government has taken another step to relax • Wholesale of salt restrictions on foreign investments in the Shanghai In China, wholesale of salt is monopolised. The FTZ by issuing the Decision, the practical benefits Administrative Measures on Foreign Investment remain to be seen. For instance, it is not entirely clear in Merchandising Sector specifically prohibits whether there is sufficient land and infrastructure to FIEs from engaging in this business. The Decision set up manufacturing enterprises in the Shanghai allows a wholly foreign owned enterprise FTZ and whether there is any practical hurdle for a incorporated in Shanghai FTZ to engage in the wholly foreign owned retailer of sugar and grain wholesale of salt, provided that the distribution is incorporated in the Shanghai FTZ to set up retail limited within the zone. stores outside the zone. Nonetheless, the Decision is still welcomed by foreign investors as it has at least • Distribution of plant oil, sugar, fertilisers, grain provided investors with opportunities not previously and cotton available. Under the existing national regulations, if an FIE engages in retail business distributing different brands of plant oil, sugar, fertiliser, cotton or grain from different suppliers and has more than 30 retail stores across the country, then the proportion of equity held by the foreign investors in such FIE shall not exceed 49%. The Decision now removes such foreign equity cap and allows 100% foreign ownership with respect to the wholesale and retail of plant oil, sugar and fertilisers and the retail of cotton and grain, regardless of the number of stores that the FIE has established. 2 Mayer Brown JSM | Shanghai Free Trade Zone Further Relaxes Foreign Investment Restrictions on First Anniversary List of Restrictions Removed by the using overseas timber resources, and iii) high- Decision grade paper or paperboard (the production lines for which is built simultaneously). 1. Foreign investors are allowed to engage 9. Foreign investors are allowed to set up wholly in loading and unloading of international foreign-owned enterprises to engage in the maritime transport cargoes, warehousing of manufacturing of wheeled or crawler cranes of international maritime transport cargoes, 400 tons or above. container depots and stacking yards of international maritime transport cargoes in 10. Manufacturing of various types of P0-grade the form of a wholly foreign-owned enterprise. bearings and their components (steel balls and cages) and roughcasts is no longer a restricted 2. Foreign investors are allowed to engage in industry sector for foreign investors. international shipping agency business in the form of equity joint venture or cooperative 11. Manufacturing of hydraulic excavators of less joint venture with the foreign equity capped at than 15 tons (exclusive) and wheeled loaders 51%. of less than 3 tons (exclusive) is no longer a restricted industry sector for foreign investors. 3. Imports and exports certification business is no longer a restricted sector for foreign 12. Manufacturing of equipment for ordinary investors and the qualification requirements polyester filament yam and short fiber is no on a foreign investor are cancelled. longer a restricted industry sector for foreign investors. 4. Foreign investors are allowed to set up wholly foreign-owned enterprises to engage in the 13. Foreign investors are allowed to set up wholly wholesale of salt, provided that the distribution foreign-owned enterprises to engage in business is limited within Shanghai FTZ. manufacturing, research and development of automobile electronic network technologies 5. Foreign investors are allowed to set up wholly and electronic controllers for electric power foreign-owned enterprises to engage in the